Author: Jenny E. Carroll

Jenny Carroll is a former public defender and Prettyman Fellow. She currently teaches criminal procedure, criminal law and evidence at Seton Hall Law School.

Last Saturday, Khalid Sheikh Mohammed (“KSM”), the self-proclaimed mastermind of the September 11 attacks, and four others were scheduled to be arraigned before a military commission in Guantanamo Bay, Cuba. Things didn’t go exactly as the government had planned. Instead of pleading, the defendants resisted. KSM and the rest of the defendants refused to answer the judge’s questions. One defendant started praying, and another defendant shouted that he was concerned for his own and the other defendants’ safety. The behavior turned the arraignment – usually a fairly brief proceeding – into a disorderly 13-hour hearing.

These are obviously unusual defendants. They claim to have planned a devastating act of terrorism that forever changed our nation’s sense of security and itself. They have been held by their self-proclaimed enemy for nearly ten years awaiting trial. During that time, evidence against them was acquired through mechanisms reminiscent of the Spanish Inquisition — according the military’s own records, KSM was water boarded a total of 183 times in a single month. When their day in court finally arrived, the venue was not the federal court in New York, the most logical jurisdiction and the one Attorney General Eric Holder would have preferred, but a military commission. And while these commissions may have improved markedly since their inception in the Bush Administration, they remain shrouded in mystery with uncertain procedural or Constitutional protections.

Although these are unusual defendants in an unusual case, their strategy of resistance is not entirely new. The strategy declines to recognize the authority of the court and calls into question the legitimacy of the very system that claims the power to adjudicate. A long line of political dissidents and activists have sought to transform their criminal trials into a commentary on the system itself. In my forthcoming article, The Resistance Defense, I examine the implications of this defense. As I suggest there, the defense of resistance highlights two compelling but under-explored components of criminal law. First, the procedural rights that compose the right to a defense are more than individual rights; they have a communal value. The defendant may utilize them to challenge the accusation, but the community relies on them as well to legitimate the process and outcome. If a defendant forgoes these protections, the process is curtailed and questions of its legitimacy inevitably follow. Second, these procedural rights have a substantive component. They help to define notions of guilt and appropriate punishment. If a defendant chooses to forgo these rights, they effectively alter what it means to be convicted or to deserve punishment, skewing the meaning of the law itself.

In the context of these cases, the resistance defense raises larger questions: What do we really have to lose by trying this case, or any of the military commission cases, in the federal court system that we trust every day with our most difficult cases and complex constitutional issues? Why couldn’t New York, the city that no matter what seems to endure and constantly rise ever higher, not handle the trial of the men accused of killing so many of its citizens? I, like everyone else, have heard the warnings of the high costs of security and risk of reprisals. But in allowing these trials to remain in these military commissions so besieged on all sides by questions of their legitimacy and sufficiency, have we lost something is more difficult to quantify but is infinitely more valuable? Have we struck a blow against ourselves as frightening as those imagined by KSM or anyone else who would plot against us? Have we abandoned the procedure and Constitution that we claimed to defend because we were more afraid of the men who would challenge it? In some cruel twist, have we forgotten the very freedom we claimed we were defending?